Originalism, Scalia and Gay Marriage: An Interview With Jack Balkin

Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School. He writes the blog Balkinization and is the author, among other books, of "Living Originalism."

(This interview has been condensed and edited for clarity.)

Question: Originalism, at least as I understand Justice Scalia's version, requires a certain amount of research about, and a separate amount of mind reading of, men long dead. Yet there is little chance that any founder conceived of the possibility of gay marriage. So how does one apply an originalist framework to the two cases being argued this week?

Answer: That's not actually Scalia's view. He rejects original intention in favor of original public meaning. This is the view he embraced in the 1980s in a famous speech before the Federalist Society. Most originalists today are original public meaning originalists.

Q: But is it any easier to interpret "public meaning" than "original intention"? Our contemporary politics suggest it can be pretty difficult to arrive at a consensus on public meaning -- not to mention on who exactly "reasonable" persons are -- even when you're living through it.

A: Let me distinguish Scalia's own practice from originalism generally, and note that originalist arguments can point in many different directions, depending on how you understand history.

Scalia is a "fair-weather originalist." He often ignores originalist evidence when it is inconvenient. A good example is his view about affirmative action. He's never taken seriously the evidence that the Reconstruction-era framers believed that certain race conscious measures were consistent with the Constitution. So if he were to find originalist arguments unhelpful in the gay marriage cases, he would fall back on doctrinal arguments, which he usually interprets in a politically conservative way. Here he would argue for limiting current precedents and leaving the issue to the states and to Congress, respectively.

Q: That said, since there is neither original intention nor public meaning to guide a jurist on an issue like gay marriage, what does someone like Scalia fall back on as an interpretive strategy?

A: The 1787 and Reconstruction-era framers didn't know about gay people (as opposed to same-sex acts), but they didn't know about airplanes and the Internet either. Originalists reason from general principles to new factual situations. The question is how they read the history to generate these principles -- how general or specific. Different people do this in different ways and at different levels of generality, producing different results.

A conservative like Scalia might argue that the Fifth Amendment and the 14th Amendment weren't designed to say anything about marriage, which was a local institution and a question of what was (in 1868) called "social rights" as opposed to "civil rights." Therefore a modern-day conservative originalist like Scalia would just defer to the state legislatures and Congress.

On the other hand, a liberal originalist might argue that the purpose of the 14th Amendment was to guarantee equal basic rights, and to prevent legislation that singles out groups out for unjustified special burdens (class legislation) or that tries to subordinate a group through law (caste legislation). Applying these principles today might support constitutional protection of gay rights.

Q: Is that really the best we can do in terms of constitutional theory? Let's take a liberal judge who looks at gay marriage and concludes that the 14th Amendment justifies gay marriage on equal-rights grounds. Her conservative colleague, on the other hand, looks at the 14th Amendment, in conjunction with the Fifth Amendment, and concludes that the federal government has no role in guaranteeing rights related to marriage. Both judges ground their opposite rulings in the same doctrine -- originalism. If that is a plausible scenario, how does originalism, pliable as it is, claim greater constitutional or public authority than the simple political preferences of whoever happens to be sitting on the bench when the case is heard?

A: I don't believe that originalism is significantly more constraining than other forms of constitutional argument, at least as it is actually practiced by federal judges. Former Attorney General Ed Meese (among other movement conservatives) argued that it was, but he was wrong about that. We have seen the results over a fairly long period of time.

You should not assume, however, that, as an alternative, doctrinal argument -- reasoning from previous court decisions -- is particularly constraining in difficult and contested cases at the Supreme Court level. Although the Justices decide many cases unanimously, or by 8-1 or 7-2 margins, in high-profile cases like the gay marriage cases before the court this week, doctrine will often not provide clear or determinate answers.

Depending on how we use history, originalist arguments can point in more than one direction. But that is also true of doctrinal arguments. They aren't always more determinative, especially at the Supreme Court level. So the big takeaway is that originalism may shape the way that judges argue about the Constitution, but it doesn't relieve judges of the need to exercise judgment. The reason we hire judges is to judge.

(Francis Wilkinson is a member of the Bloomberg View editorial board. Follow him on Twitter.)